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2023 Supreme(HP) 153
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
Ajay Sharma – Appellant
Versus
State of Himachal Pradesh - Respondent
CWPOA No. 2515 of 2019
Decided on : 31-03-2023
Advocate Appeared:
For the Appellant :Mr.Vijay Chaudhary, Advocate.
For the Respondent: Mr.Dinesh Thakur, adv.
Point of Law: There is no fault of petitioner in delay in his appointment and, therefore, he is entitled to ranking given in Select List.
Headnote:
Ex-servicemen - Select List - Release all consequential benefits - Petitioner has approached this Court seeking direction to respondent to release all consequential benefits to petitioner at par with Assistant Engineers (Civil) appointed as per merit in Select List – If ineligible candidates had not been included in Select List, petitioner would have been appointed alongwith others in November, and in that eventuality he would have been entitled for all benefits including seniority. [Para 19]
Finding of the Court: Petitioner is entitled for appointment however, he has joined service and he has not actually worked since 2004 to 2013 and, therefore, in court considered opinion it cannot be fair to extend him monetary benefits in actual, but he, definitely, deserves for notional consequential monetary benefit from November, 2004 till his joining for fixation of pay and increments and other benefits etc. but for all consequential benefits thereto on actual basis since his joining service - However, he shall be entitled for all other benefits on actual basis including seniority, counting of service towards pensionary benefits and promotion if any on basis of that - In view of above discussion and considering pronouncements of Courts, referred supra, rejection communicated vide communication is set aside and it is directed that petitioner shall be deemed to have been appointed alongwith other appointees under appointment order and he shall be assigned a place of seniority in accordance with his placement in order of merit in Select List prepared by Commission.
Result: Petition allowed.
JUDGMENT :
Vivek Singh Thakur, J
Petitioner has approached this Court seeking direction to respondent to release all consequential benefits, i.e. seniority, pay fixation, monetary benefits alongwith 12% interest per annum to the petitioner at par with Assistant Engineers (Civil) appointed as per merit in the Select List dated 16.11.2004, prepared and recommended by Commission to the respondent-Department, from due date, i.e. since November, 2004.
2. On request of Irrigation and Public Health Department (I&PH) of Government of Himachal Pradesh, Public Service Commission (Commission) initiated recruitment process by issuing Advertisement No.II of 2003, inviting applications from eligible candidates for various posts, including six posts, of Assistant Engineers (Civil) Gazetted Class-I. Out of these six posts five posts were reserved for ‘general ex-servicemen’ and one for ‘Scheduled Caste ex-serviceman’ (backlog). Interviews for filling up these posts were conducted on 6th, 7th and 8th January, 2004 by the Selection Committee constituted by the Commission. Names of these candidates, including petitioner, were recommended, however a controversy was raised regarding these recommendations, whereupon petitioner alongwith co-petitioner had filed CWP No. 97 of 2004 seeking appropriate direction.
3. The said petition CWP No. 97 of 2004 was disposed of by Division Bench of this High Court vide judgment dated 22.4.2004 and thereafter interviews to the posts were again conducted on 26th and 27th October, 2004, wherein petitioner had appeared. Result of interview was declared on 16.11.2006 but the name of the petitioner was not amongst recommended candidates.
4. Inclusion of names of three candidates, namely, Rakesh Kumar, Sumit Sood and Rakesh Rana, in the select list was assailed by the petitioner by filing CWP-T No. 11665 of 2008 and one another Bhushan Lal Sharma also did so by filing CWP-T No. 6340 of 2008.
5. Out of aforesaid these three persons, Rakesh Kumar did not join. Petitioner had raised objection with respect to eligibility of Sumit Sood and Rakesh Rana on the ground that Sumit Sood was already employed as Junior Engineer in HPPWD and thus was not a dependant son/ward of ex-serviceman father/guardian and thus he was not falling in the definition of wards/dependants of ex-serviceman. Whereas Rakesh Rana was not possessing a degree in Civil Engineering or its equivalent qualification as per rules and his father being ex-serviceman had already availed benefit as he was already appointed against a vacancy reserved for ex-serviceman.
6. Petitioner had also made a complaint against Sumit Sood and Rakesh Rana, whereupon a thorough inquiry was ordered to be conducted through Deputy Commissioner/Sub Divisional Magistrate as well as Head of the Department. After inquiry, it was reported that Sumit Sood had himself availed benefit of ex-serviceman while getting service as Junior Engineer in PWD and father of Rakesh Rana had also availed benefit of ex-serviceman by getting employment in IPH Department as Stenographer and these facts were also confirmed by Engineer-in-Chief IPH.
7. Show cause notice was issued to these persons for terminating their services for furnishing false information to the Department, which was assailed by them before erstwhile H.P. State Administrative Tribunal (Tribunal), which on abolition of Tribunal were transferred to this High court and dismissed being not maintainable against issuance of show cause notice.
8. Lateron, on the basis of opinion of Law Department, based upon the fact that Sumit Sood, at the time of getting job in HPPWD, had appeared as a general category candidate and not against post reserved for category of wards of ex-serviceman, nor his father had ever availed any such benefit under said quota, show cause notice issued against him was dropped.
9. Rakesh Rana was also considered to be eligible for equivalence of his degree with Civil Engineering. However, in judgment dated 3.10.2022 passed in CWP(T) N
